Gilson v. Argonaut-Midwest Insurance Company et al
Filing
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ORDER denying 12 Motion to Remand Signed by Chief District Judge Louis Guirola, Jr on 04/12/2012 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BILLY JOE GILSON
PLAINTIFF
v.
CAUSE NO. 1:11CV325 LG-JMR
ARGONAUT-MIDWEST INSURANCE
COMPANY; INTERNATIONAL
REHABILITATION ASSOCIATES, INC.,
d/b/a INTRACORP; NADINE GLAZIER;
and SNIDER MANAGEMENT
DEFENDANTS
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND
BEFORE THE COURT is the Motion to Remand [12] filed by Plaintiff Billy
Joe Gilson. The Defendants have responded, and Gilson has replied. After due
consideration of the submissions and the relevant law, it is the Court’s opinion that
a non-diverse defendant was improperly joined. Accordingly, jurisdiction in federal
district court exists, and the Motion to Remand must be denied.
FACTS AND PROCEDURAL HISTORY
According to the allegations of his Complaint, Plaintiff Gilson fell while
exiting from a truck and was injured during his employment as a truck driver for
Defendant Snider Management, LLC. Snider provided workers compensation
coverage to its employees through Defendant Argonaut-Midwest Insurance
Company. Argonaut contracted with Defendant International Rehabilitation
Associates (“Intracorp”) to provide case management services for workers’
compensation claims. Defendant Nadine Glazier, a registered nurse, is an
Intracorp Medical Case Manager.
After his fall, Gilson was examined by an Orthopedic Surgeon, Dr. Charles
Winters. Dr. Winters recommended an MRI, which was approved by Intracorp and
performed on August 22, 2008. Gilson was scheduled for a follow-up appointment to
review the MRI results on September 9, but Glazier cancelled that appointment
because Gilson’s workers’ compensation claim was being denied.
Gilson sought additional medical treatment for his leg and back pain. Dr.
McCloskey examined him and concluded that Gilson’s pain was the result of his
work-related accident. He performed surgery on Gilson’s back on August 25, 2009.
After Gilson had reached maximal medical improvement, Dr. McCloskey continued
to believe that Gilson’s pain and physical impairment was a direct result of the
accident.
In February 2010, Gilson was seen by Dr. Admunson, who also had the
opinion that there was a causal relationship between the accident and Gilson’s pain.
Dr. Admunson thought the surgery performed by Dr. McCloskey was appropriate.
Meanwhile, the Defendants continued to deny workers’ compensation
benefits. After a Workers’ Compensation Commission hearing in August 2010,
Gilson was found entitled to two periods of temporary total disability benefits and
one period of temporary partial disability benefits. Gilson alleges that the
Defendants have “at all times failed and refused to pay any disability benefits, for
medical care rendered to Mr. Gilson, and other benefits due under Mississippi’s
workers’ compensation laws.” (Compl. 8 ( ¶ 30), ECF No. 1-2).
Gilson filed claims of gross negligence, breach of contract, bad faith refusal to
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pay, breach of fiduciary duty, and intentional infliction of emotional distress against
the Defendants in the Harrison County, Mississippi Circuit Court. Intracorp timely
removed this action to federal court on the basis of diversity jurisdiction under 28
U.S.C. § 1332. Glazier, Argonaut, and Snider joined in the removal. (Notice of
Removal Ex. C, D & E, ECF No. 1-2 p. 88-90).
Gilson is a citizen of Mississippi; Intracorp is a Delaware corporation with its
principal place of business in Philadelphia, Pennsylvania; Argonaut-Midwest
Insurance Company is an Illinois corporation with its principal place of business in
Chicago, Illinois; Snider Management, LLC is a Missouri limited liability company
whose sole member is a resident of Missouri; and Nadine Glazier is a citizen of
Mississippi.
As grounds for removal, Intracorp asserted: (1) there is complete diversity of
citizenship between Gilson and Defendants Intracorp, Argonaut and Snider; (2) that
the amount in controversy, exclusive of interest and costs, exceeds the sum of
$75,000; and (3) that Glazier, who is a non-diverse defendant, was improperly
joined and her citizenship should therefore be disregarded for jurisdictional
purposes.
Gilson subsequently filed this Motion for Remand, asserting that Glazier was
not fraudulently joined and requesting that this case be remanded to State court.
The Defendants argue that Gilson has failed to show any reasonable possibility of
recovery against Glazier under Mississippi law.
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DISCUSSION
The Legal Standard
A party alleging improper joinder must show by clear and convincing
evidence either that there is no possibility that the plaintiff could establish a cause
of action against the non-diverse defendant, or that the jurisdictional allegations in
the plaintiff's pleadings are fraudulent. Burden v. Gen. Dynamics Corp., 60 F.3d
213, 217 (5th Cir. 1999); Dodson v. Spiliada Mar. Corp., 951 F.2d 40, 42 (5th Cir.
1992). In evaluating improper joinder claims, the Court must initially resolve all
disputed questions of fact and all ambiguities in the controlling state law in favor of
the non-removing party. Dodson, 951 F.2d at 42. The Court is then to determine
whether that party has any possibility of recovery against the party whose joinder
is questioned. Id., cited in Burden, 60 F.3d at 216. The Court is permitted to
consider evidence outside the pleadings, such as affidavits, deposition transcripts,
and other documentation in making this determination. Burden, 60 F.3d at 217.
However, a plaintiff can defeat a defendant's improper joinder argument “only when
there exists an actual controversy, i.e. when both parties have submitted evidence of
contradictory facts.” Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393-94 (5th Cir.
2000) (emphasis in original). A court should not, “in the absence of any proof,
assume that the nonmoving party could or would prove the necessary facts” to
support his claims against the non-diverse defendant. Id. (citing Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). Furthermore, conclusory or generic
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allegations of wrongdoing on the part of the non-diverse defendant are not sufficient
to show that a defendant was not fraudulently joined. Badon, 224 F.3d at 392-93.
Glazier’s Joinder
The Defendants here contend that there is no reasonable basis upon which
Gilson can recover against Glazier in state court, because Glazier had nothing to do
with the workers’ compensation benefit decisions made in Gilson’s case. Gilson
argues that a cognizable cause of action does exist, because several courts have
found that agents could possibly be liable for their gross negligence and bad faith in
handling a plaintiff’s claim.
Gilson cites Gould v. Liberty Mutual Group, No. 1:06CV161-D-D, 2007 WL
162283 (N.D. Miss. Jan. 17, 2007) in support of his argument. In that case, the
court found first that in Mississippi, an agent of a disclosed principal can be held
personally liable for his own tortious acts committed within the scope of his
employment. Id. at * 3 (citing Hart v. Bayer Corp., 199 F.3d 239, 247 (5th Cir.
2000)). Next, the court found that the plaintiff had made specific allegations
demonstrating that the agent might have “engaged in conduct that would support a
finding of civil conspiracy and bad faith.” Gould, at *3. The agent was an
insurance adjuster who had executed an affidavit allegedly showing his connection
to, and active participation in, the failure to pay workers’ compensation benefits,
while within the scope of his employment.
In this case, Gilson has made the following factual allegations against
Glazier: she attended Gilson’s August 12, 2008 appointment with Dr. Winters; she
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contacted Dr. Winters’ office to cancel the follow-up appointment, stating that Mr.
Gilson’s workers’ compensation claim was being denied; and she sent a letter to Dr.
Winters on Intracorp letterhead stating that Gilson’s workers’ compensation claim
file was being closed, since his claim had been denied. (Compl. 3-4 (¶ 13-15), ECF
No. 1-2). Gilson claims that Glazier was grossly negligent because she failed to
promptly and thoroughly investigate a covered claim, failed to authorize payment of
his medical bills, unreasonably terminated his claim, and maintained an
unreasonable position of claim denial despite all credible evidence to the contrary.
(Id. at 9 (¶ 35)).
Intracorp contends that Gilson’s allegations that Glazier was involved in
adjusting and handling his claim are not true. In support, Intracorp has provided
Glazier’s affidavit concerning her role in Gilson’s case. (Def. Resp. in Opp. Ex. 1,
ECF No. 14-1). Glazier states that her sole duties were to coordinate medical
benefits and assist in Gilson’s return to work. (Id. at 2 (¶ 7)). Glazier was not the
adjuster and had no authority to make coverage or benefit determinations. (Id. at 3
(¶ 9)). She had no input with regard to claims handling or payment activities. (Id.)
She merely followed the directives of the adjuster at Argonaut-Midwest Insurance
Company in informing Glazier that his treatment would no longer be paid and his
claim denied. (Id. at 2 (¶ 7)).
The facts established by Glazier’s affidavit are uncontroverted by Gilson.
Accordingly, it appears to the Court that there is no possibility that Gilson will be
able to state a gross negligence claim against Glazier. She has been improperly
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joined because the facts of the case do not show any tortious conduct on her part.
Her citizenship should be disregarded for purposes of determining jurisdiction, and
as there is complete diversity between the remaining parties, federal jurisdiction
exists. The Motion to Remand will be denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to
Remand [12] filed by Plaintiff Billy Joe Gilson is DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that, pursuant to L.U.
Civ. R. 16 (b)(1)(B), the parties shall notify the magistrate judge of this order and
shall promptly submit an order lifting the stay entered in this matter on September
22, 2011.
SO ORDERED AND ADJUDGED this the 12th day of April, 2012.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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